Clarification of Certain Definitions and Processes Under the FFCRA

On behalf of the City of Chicago, we are writing in response to the Department of Labor's request for comments regarding the creation of regulations regarding the implementation and definitions relevant to the Families First Coronavirus Response Act, specifically, Division C - Emergency Family and Medical Leave Expansion Act and Division E—Emergency Paid Sick Leave Act. We thank the Department for the opportunity to participate in this process.

The City of Chicago employs more than 35,000 employees who provide a wide range of essential services to more than 2.7 million Chicagoans. In this time of national crisis, City services will become even more vital as Chicagoans cope with massive economic disruption, unemployment, and an unprecedented threat to public health.

The City of Chicago believes strongly in the core policy underlying the FFCRA: workers who need to take time off of work due to the COVID-19 crisis should have access to paid leave. The City of Chicago has long provided generous sick leave benefits to its employees. Additionally, even before Congress enacted the FFCRA, the City of Chicago supplemented these benefits with additional paid leave for civilian employees unable to work due to COVID-19. The City has also provided telework options for all workers who can work remotely and has continued to pay any workers who cannot telework but are deemed non-essential.

At the same time, the City of Chicago is keenly aware that Chicagoans will need to rely on City workers to provide essential, and in many cases life-saving services during this time of emergency. The City is deeply concerned that, unless the DOL carefully exercises its regulatory authority under the FFCRA, the extended paid absences afforded by the FFCRA could cripple the ability of the City and its related agencies (including but not limited to the Chicago Housing Authority, Chicago Transit Authority, and others) to provide services and care for its most vulnerable citizens precisely when such care is needed most. Chicago Public Schools will also begin a remote learning curriculum that will allow students—who have already lost critical instruction time due to COVID-19 School closures—to resume learning. It will be critical to ensure teachers and administrative staff are available to support students and their families during this transition.

The City of Chicago urges the Department of Labor to keep these needs in mind as it crafts regulations and guidance to implement the requirements of the FFCRA. In particular, the City asks the Department of Labor to consider the following in its rulemaking:

THE DEPARTMENT SHOULD GRANT LOCAL GOVERNMENTS ADDITIONAL AUTHORITY TO DEFINE "EMERGENCY RESPONDERS"

Both the Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act allow employers to exclude "health care providers and emergency responders" from the definition of "eligible employee." The FFCRA does not define "health care providers and emergency responders," but grants the Secretary of Labor authority to define these terms by regulation.

The Department recently posted a definition of "Emergency Responder," as follows:

57. Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state's or territory's or the District of Columbia's response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

A flexible definition of "emergency responders" is vital to ensure that municipalities like the City of Chicago will be able to provide public services crucial to the health and safety of their residents during this crisis. The City appreciates the recognition in this definition that "Emergency Responder" must not be limited to sworn police, fire, and emergency medical services ("EMS") personnel. Many other public employees also play a vital role in responding to the ongoing public health emergency. For example, in the City of Chicago, Department of Public Health personnel are on the frontlines of the current crisis and a vital part of the City's emergency response. The same is true of information technology and communications personnel. Department of Aviation and Department of Transportation employees are needed to ensure that key transportation infrastructure including Chicago's O'Hare and Midway International Airports remain open so that the City can remain connected to vital sources of equipment and supplies. It is essential that City residents have uninterrupted access to clean water. Sanitation, maintenance and utility, and administrative support personnel all have vital roles to play in this time of crisis, as do many other categories of City workers. City workers are also tasked with providing essential safety net services to vulnerable populations. These include, for example, services such as homeless and wrap-around social services; supplying meals and food provisions for seniors and people in need; facilitating housing for citizens returning from prison; providing basic support for small businesses crippled by COVID-19, and many other services that are absolutely crucial to the City's ability to effectively respond to this emergency. Many City employees possess unique skills, licenses and credentials not readily available in the general population that are absolutely vital in responding to a wide range of emergencies, including but by no means limited to those associated with the current public health crisis. Which skills and qualifications may be vital in a given emergency may vary widely depending on the particular circumstances.

If the term "emergency responders" was limited to sworn police, firefighters, and emergency medical service providers, the City of Chicago's ability to respond to the ongoing public health emergency could be crippled. The FFCRA permits eligible employees to claim up to twelve weeks of FMLA leave if their child is home from school or daycare, and up to ten days of paid leave for a variety of reasons related to COVID-19. Illinois schools are closed and are likely to remain closed for the foreseeable future. As the City of Chicago has residency requirements, we know that a significant portion of the City's essential civilian employees have school-age children. This creates the distinct possibility that a significant portion of the City's workforce may be unavailable for weeks or even months at a time when Chicagoans are relying on City government more than ever before.

The City of Chicago recognizes the difficulty of attempting to define, at the federal level, which local government employees are necessary to respond to the ongoing public health emergency. Which services are essential to a city's emergency response will vary from community to community and is likely to change over time as this crisis continues to unfold. Therefore, the City of Chicago urges the Department of Labor to further expand the definition of "emergency responder."

To that end, the City proposes the following regulatory language:

Emergency Responder shall include all personnel designated by a public agency to perform and support essential governmental functions. Essential governmental functions include all services provided by the public agency to ensure the continuing operation of the government agencies or their delegates to provide for or support the health, safety and welfare of the public. These positions include, but are not limited to, firefighters, emergency medical rescue personnel, emergency dispatchers, court personnel, law enforcement and corrections personnel, security, hazardous materials responders, airport and transportation personnel, child protection and child welfare personnel, housing and shelter personnel, social services personnel, public works personnel, sanitation, health care and public utilities personnel, and information technology personnel. This definition shall be interpreted broadly to effectuate the purposes of the Act.

Alternatively, the Department could adopt a definition of "emergency responders" that is consistent with the March 28, 2020 guidance issued by the U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency entitled "Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response", available at: https://content.govdelivery.com/attachments/USDHS/2020/03/28/file_attachments/1413716/Version%202.0%20-%20CISA%20Guidance%20on%20Essential%20Critical%20Infrastructure%20Workers.pdf.

As the agency charged with managing the nation's safety and security in the face of disasters both natural and man-made, the Department of Homeland Security's identification of essential governmental functions during a time of crisis should be afforded significant deference as the Department of Labor defines which employees should be considered "emergency responders" in the context of the COVID-19 crisis. While a more flexible definition such as the one proposed above would better preserve the ability of local governments to make decisions based upon the unique needs of their citizens and communities, the City of Chicago believes that a definition based upon the Department of Homeland Security's publication would sufficiently preserve its ability to respond to the ongoing public health emergency.

Finally, if the Department does not adopt either of the foregoing alternatives, it could at a minimum provide city and county governments flexibility to respond to emergency situations as needed by amending the last sentence of its guidance to read:

This also includes any individual that the highest official of a state or territory, including the District of Columbia, or of a county or municipal government, determines is an emergency responder necessary for that municipality's, county's, state's or territory's or the District of Columbia's response to COVID-19.

THE DEPARTMENT SHOULD CLARIFY WHEN A PARENT IS "UNABLE TO WORK OR TELEWORK" DUE TO THE NEED TO CARE FOR A CHILD UNDER THE AGE OF 18 WHOSE SCHOOL OR DAYCARE FACILITY IS CLOSED DUE TO COVID-19

As noted above, a significant portion of the City's civilian workforce are parents of school-age children. All schools and most daycare facilities in the State of Illinois are presently closed due to the COVID-19 crisis. It is not presently known when they will reopen. The FFCRA allows employees who are "unable to work or telework" due to the need to care for minor children due to school and daycare closures to take up to twelve weeks of paid leave from work. The FFCRA itself does not define when an employee is "unable to work or telework." To effectuate the intent of Congress and protect those workers who need leave from work while also preserving the ability of employers like the City to continue providing essential services, the Department should clarify that an employee is not "unable to work or telework" merely because their minor child's school or place of care may be closed. For example, a parent who typically works outside of school hours should not be entitled to leave from work because a child's school is closed during non-working hours. Likewise, parents should not be entitled to leave from work due to school closures during the summer months to care for a child who would not otherwise be in school during that period of time, unless the parent's alternative child care arrangements for the summer are also unavailable due to the COVID-19 crisis. Parents who are able to telework should not be entitled to leave from their telework arrangement if an older child who does not require constant care or supervision is also home from school.

The Department's regulations should also clarify that a parent is not "unable to work or telework" if another spouse or caregiver is already present at home to care for the employee's child. Additionally, the Department should clarify that an employee who is offered the opportunity to work from home or work a modified or flexible work schedule to coordinate hours of care with a spouse or other caregiver would not be regarded as "unable to work" if the alternative work arrangements would reasonably meet their childcare needs.

The Department should also clarify in its regulations that employers are permitted to work with their employees to address any child care concerns resulting from school or child care closures, and to deny leave to an employee who refuses to engage with the employer in its efforts to provide such accommodations to enable an employee to continue working.

To achieve these ends, we recommend adopting the following regulation:

"Unable to work or telework"

(a) Employees are not considered "unable to work or telework" if their employers are able to modify the employees' schedules or provide employees with the ability to work remotely or telework in a manner that reasonably addresses the employee's need to care for a child whose school or child care facility is closed due to COVID-19. An employee who refuses an offer of telework or a modified work schedule that reasonably addresses the need to provide care for a minor child, or who refuses to engage in reasonable efforts with the employer to identify such accommodations, will not be regarded as "unable to work."

(b) Employees who request leave to care for a child if the school or place of care facility is closed due to COVID-19, and whose spouse, partner, or other person who shares child raising responsibilities with the employees are not unable to work if the spouse or partner is simultaneously caring for the child. Only one person in a parental or in loco parentis relationship to the at-issue children may utilize the FML Expansion Act or Emergency Sick Leave Act leaves on any given day or at any one time.

(c) An employee is "unable to telework" due to the need to care for a minor child whose school or place of care is closed only if the employee is unable to perform their assigned telework responsibilities due to the need to provide consistent care and supervision to the child. Unless an employer requires that teleworking time be uninterrupted, occasional interruptions of working time to supervise or care for a child do not render an employee "unable to telework."

For employers to effectuate the intent of Congress and provide paid emergency sick and FMLA leave benefits to eligible employees, employers must have a mechanism for confirming which employees are entitled to such benefits. The guidance posted on the Department's website as of the date of this comment does acknowledge that employers may request certain documentation of an employee's need for leave under the FFCRA, such as documentation that a child's school is closed. However, in most cases, such documentation will be of limited utility, because the fact of a school closure will be well known (particularly in states where all schools are closed). The more pertinent issue requiring information from employees with respect to leave to care for a child whose school or place of care is closed is why the school or child care closure prevents the employee from working. Employers must have a reasonable mechanism for requesting this information. Additionally, given the timing and scope of the leave at issue, it is important that this information be provided sooner than the 15 days typically allowed for medical certifications under the FMLA.

We propose the following language:

Employers may request an employee to provide reasonable information in order to confirm that the employee meets all requirements set forth in the FFCRA to be entitled to leave, including but not limited to an explanation of why an employee is "unable to work or telework" due to a qualifying reason. This may include asking employees to provide documentation, if available, or to provide a written self-certification confirming the basis for the employee's leave request. Employers shall provide reasonable time to respond to such requests for information and must provide a reasonable extension of time if an employee is unable to provide requested information within the timeline requested by the employer for reasons outside of the employee's control. If an employee unreasonably fails or refuses to answer these questions and/ or provide requested information or documentation, employers may deny the request for leave.

Thank you for the opportunity to submit public comments on this issue of vital importance to our community. We hope the Department's final regulations will define "emergency responders" in a manner that allows governments to appropriately balance the needs of public employees while still allowing governments to protect the health and safety of their citizens during this emergency.